Multiple Choice Test: Disability Discrimination

Can a multiple choice test as part of a recruitment exercise amount to disability discrimination?

In The Government Legal Services v Brookes the Employment Appeals Tribunal (EAT) had to determine exactly that.

The legal background

Indirect discrimination: occurs where a provision, criterion or practice (PCP) is applied to everyone in the same way but the effect of it is particularly disadvantageous to people who share a protected characteristic and the employer cannot objectively justify the PCP.

Reasonable adjustment duty: Employers have a duty to make reasonable adjustments to their premises or working practices to help disabled applicants and employees overcome a particularly disadvantage. Failure to comply with this duty is a form of discrimination.

Facts

Ms Brookes (who has Asperger’s syndrome) applied for a job at the Government Legal Service (GLS). At the first stage of the recruitment process, she was required to sit a multiple choice test based on situational judgment. Prior to sitting this she contacted GLS to ask if an adjustment could be made to the format of the test on account of her Asperger’s, in particular she be permitted to provide her answers in a short narrative rather than multiple choice. GLS refused and told her that extra time might be given for tests at a later stage, provided three entry level tests had been passed. Ms Brookes took the test and was informed she had not passed. The pass mark was 14 points; whereas she scored 12.

Ms Brookes brought claims for disability discrimination. She argued that multiple choice answers were either objectively right or wrong with no room for subjective consideration by the examiner and this put her at a particular disadvantage compared to other candidates who did not suffer from Asperger’s; that there was no justification for this and that GLS did not make reasonable adjustments to the test to help her overcome this disadvantage.

The employment tribunal upheld her claim and considered her requested adjustment to be reasonable. The tribunal had regard to medical evidence which, whilst not conclusive, could support a conclusion that Ms Brookes was put at a disadvantage as multiple choice tests generally placed those with Asperger’s at a particular disadvantage compared to people who do not have Asperger’s, as people with Asperger’s often lack social imagination.

The tribunal held that the indirect discrimination was not justified; whilst GLS were pursuing a legitimate aim of testing the competency of applicants’ decision making, the means of achieving that aim were not proportionate. A reasonable adjustment could have been made to the test by allowing written answers to be given.

GLS appealed to the EAT arguing that the medical evidence did not support the tribunal’s decision that Ms Brookes has been placed at a particular disadvantage and the failure to make the adjustment requested by Ms Brookes could be justified.

Decision

The EAT dismissed the appeal. The EAT held that the tribunal’s reasoning could not be faulted.

Whilst each party had called a psychiatric expert, their combined evidence was described by the tribunal as “inconclusive” to the extent to which Ms Brookes had been disadvantaged by the format of the test. What is important is that both experts agreed that she fitted the profile of a person with Asperger’s likely to the disadvantaged and that there was substantial medical evidence that Ms Brookes had been treated by a psychiatrist since her university days who had made previous recommendations to her University that a multiple choice test would not be appropriate for her. Ms Brookes had also referred GLS to this prior to be required to embark on the psychometric testing.

The EAT did recognise that the GLS did need to test the competency of its candidates, but the way they did this was not the only way to measure this.

Comment

This case highlights the importance of employers to review processes for recruitment selection and internal promotion. Employers may be expected to adjust their chosen method of testing in cases where a disabled applicant asserts that the method of testing puts them at a disadvantage.

In Brief

In little under one year, the General Data Protection Regulation (GDPR) will come into force (on 25 May 2018), which introduces wide ranging changes to UK Data Protection Law.

Significant penalties can be imposed on employers that breach the GDPR, including fines of up to 4% of annual worldwide turnover or 20 million euros (whichever is the greater).

Some of the existing core concepts for Data Protection will remain the same, however the GDPR will introduce new and substantial changes, including more prescriptive requirements for obtaining consent to process data and employees must be able to withdraw their consent at any time. Employers will also need to provide more detailed information on, amongst other things, the storing of data. There will also be a strict duty to report all breaches of the GDPR.

The Information Commissioner’s Office (ICO) has warned businesses to prepare for the GDPR. The ICO has published a self-assessment tool-kit for SMEs to help organisations assess their progress in preparing for the GDPR (https://ico.org.uk/for-organisations/improve-your-practices/data-protection-self-assessment-toolkit/) and guidance on “12 steps to take now” in preparation (https://ico.org.uk/media/for-organisations/documents/1624219/preparing-for-the-gdpr-12-steps.pdf).

If there is anything we can do to help (by providing advice, more information or in-house training) on any of the issues covered by this newsletter or any other aspect of employment law, please contact Tina Maxey on 01328 863 231 or email: tina.maxey@hayes-storr.com.

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